Exhibit 10.4
AMENDMENT TO
APOGEE ENTERPRISES, INC.
EMPLOYMENT AGREEMENT
WITH XXXXXXX XXXXX
THIS AMENDMENT to the Apogee Enterprises, Inc. Employment Agreement with
Xxxxxxx Xxxxx dated May 23, 1994 (the "Employment Agreement") is entered into as
of the 7th day of July, 1998 by and between Apogee Enterprises, Inc., a
Minnesota corporation (the "Company"), and Xxxxxxx Xxxxx, a Minnesota resident
(the "Employee").
WHEREAS, the Employment Agreement currently provides, among other things,
that the Employee will receive certain severance compensation if he no longer
reports to Xxxxxx Xxxxxxx and as a result of such change in reporting
relationship, elects to resign his employment with the Company;
WHEREAS, in January, 1998, the Employee's reporting relationship was
changed such that Employee no longer reports to Xxxxxx Xxxxxxx;
WHEREAS, the Employee has elected not to resign his employment with the
Company as a result of this change in reporting relationship and to remain with
the Company until June 30, 1999, the date on which it is expected Xx. Xxxxxxx
will resign as Chairman of the Company;
WHEREAS, in consideration of Employee's agreement not to resign upon such
change in reporting relationship, the Company has agreed to provide the
Employee, on the terms and conditions set forth in this Amendment, with the same
severance compensation as Employee would have received under the Employment
Agreement had he voluntarily resigned from the Company upon his change in
reporting relationship in January, 1998 and to provide the Employee with certain
additional benefits.
NOW, THEREFORE, in consideration of the foregoing premises and the parties'
mutual covenants and undertakings contained in this Amendment, the sufficiency
of which is hereby acknowledged, the Company and the Employee agree as follows:
1. The first paragraph of paragraph 2 of the Employment Agreement is hereby
amended in its entirety to be as follows:
"Term. Subject to earlier termination as set forth herein, this
Agreement will automatically terminate on June 30, 1999. At any time prior
to June 30, 1999, the Company may terminate the employment of the Employee
upon thirty (30) days notice, without "cause" (as hereinafter defined in
this paragraph 2) provided the Company provides the Employee with the
severance arrangements discussed in paragraph 5 below."
2. The second paragraph of paragraph 2 of the Employment Agreement is
hereby amended in its entirety to be as follows:
"Notwithstanding the foregoing, the Company may terminate the
Employee's employment for cause without further obligation of any kind to
the Employee. For purposes of this Agreement, "cause" shall mean
dishonesty, theft, fraud, conviction of any crime, or unethical business
behavior. "Cause" shall also mean material failure to render competent
services or other material breach of this Agreement, either of which is not
cured within 30 days following written notice thereof to Employee."
3. Paragraph 3 of the Employment Agreement is hereby amended in its
entirety to be as follows:
"Duties and Representations of the Employee. During the Employee's
employment, hereunder, he shall serve as the Company's Senior Vice
President. He will report to the Company's Chief Executive Officer and will
perform special projects assigned to him by the Chief Executive Officer.
The Employee shall devote his full time, attention, knowledge and skill
exclusively to the loyal service of the Company and shall perform all
duties reasonably assigned to him by the Chief Executive Officer.
Additionally, the Employee shall do such traveling as may be reasonably
required by the Company in connection with the performance of his duties
and responsibilities. The Employee represents and warrants to the Company
that:
a. his acceptance of employment under this Agreement and his performance
of the duties contemplated herein are not in conflict with any
obligation, undertaking or agreement between the Employee and any
third party; and
b. he has not and will not, during the course of his employment with the
Company, disclose or utilize without permission, any confidential or
proprietary information, trade secrets, materials, documents, or
property owned by any third party."
4. Paragraph 4(b) of the Employment Agreement is hereby amended by adding
the following sentence at the end:
"Upon termination of this Agreement on June 30, 1999, or if the Employee's
employment is terminated by the Company other than for cause as defined in
paragraph 2 above prior to June 30, 1999, the Employee shall be entitled to
receive for the fiscal year of termination a pro rata portion of the annual
bonus he would have received for such year if he had been employed through
the end of such year, based upon the number of weeks of actual employment
compared to 52. The Company shall pay the Employee any such portion of his
annual bonus at such time during the Company's fiscal year 2001 when the
Company pays other executives' annual bonuses."
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5. Paragraph 5 of the Employment Agreement is hereby amended in its
entirety to be as follows:
"Severance Arrangements. Upon termination of this Agreement on June
30, 1999 pursuant to paragraph 2 above ("Agreement Termination") or if the
Employee's employment is terminated by the Company other than for "cause"
as defined in paragraph 2 above prior to June 30, 1999, the Employee shall
be entitled to receive severance compensation in an amount equal to one (1)
year of his base compensation plus his average annual bonus, calculated and
paid as though the Employee had remained in the employment of the Company.
The Employee shall not be entitled to any severance compensation if his
employment is terminated for "cause" or he voluntarily resigns his
employment with the Company.
Upon Agreement Termination or if the Employee's employment is
terminated by the Company other than for "cause" as defined in paragraph 2
above, the Company will provide the Employee with health care coverage
comparable to the health care coverage being provided to the Company's
executives. This coverage will be provided, at the Company's option, either
through the Company's plan or an individual plan. This coverage will be
provided until the Employee reaches the age of 65.
In addition upon Agreement Termination or if the Employee's employment
is terminated by the Company, other than for cause as defined in paragraph
2 above prior to June 30, 1999 or if the Employee voluntarily resigns
before June 30, 1999, the Employee shall become a consultant of the Company
under the terms set forth in this paragraph for five (5) years from the
date of the Agreement Termination, his termination or resignation, as
applicable. The Employee shall not be entitled to become a consultant of
the Company if his employment is terminated for cause as defined in
paragraph 2 above.
If the Employee shall become a consultant to the Company as provided
in this paragraph, the terms of his consultancy shall be as follows: the
Employee shall consult generally with executive personnel of the Company on
operations and policies with which he was familiar prior to the termination
or resignation of his employment. The Employee's services may be provided
in person, by telephone or by mail, and at such times, places and under
such circumstances as shall be mutually agreeable. The Company shall pay
the Employee Fifty Thousand Dollars ($50,000.00), less legally required
deductions and withholdings, per year for these consulting services. The
terms of this paragraph 5 shall survive termination of this Agreement."
6. Paragraphs 6 and 11 of the Employment Agreement are hereby amended by
replacing the words "Chairman and Chief Executive Officer" contained therein
with the words "Chief Executive Officer."
7. Except as specifically amended herein, all terms and conditions of the
Employment Agreement shall remain in full force and effect as set forth therein.
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8. This Amendment constitutes an amendment to the Employment Agreement in
conformity with the terms of paragraph 15 thereof.
9. This Amendment, together with the Employment Agreement, constitutes the
complete agreement among the parties hereto with respect to the subject matter
hereof and shall supersede in all respects any prior agreements or
understandings (whether oral or written) between the parties hereto relating to
such matters.
10. This Amendment may be executed in any number of counterparts, each of
which when so executed shall be deemed to be an original, and all of which
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
effective as of the date first above stated.
/s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
APOGEE ENTERPRISES, INC.
By /s/ Xxxxxxx Xxxxxx
----------------------------
Its Chief Executive Officer
and President
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